Bassett v. Granger

103 Mass. 177 | Mass. | 1869

Gray, J.

Assuming that the appellant, as one of the residuary legatees of Nancy Horton, had such an interest in the estates of her husband and brother as to entitle him to apply to the probate court to compel an account by the appellee, as administrator with the will annexed of the estate of the one, and executor - the will of the other, for income bequeathed by them to her; and to appeal from the decree of the judge of probate dismissing such an application; the appellant fails to show any ground for requiring the appellee, in either capacity, to render any further account of such income. So much of that income as accrued before August 2,1864, is clearly shown, by the facts proved at the hearing of this case, to have been settled for in accounts rendered by him in both capacities at that date, made up according to her directions, and upon a principle knowingly approved by her in a release under her hand and seal, and allowed by the probate court with her written assent, and without fraud or mistake. The alleged failure to account for any items of income accruing since that date has already been tried and adjudged against this appellant upon an appeal taken by him from the allowance by the probate court of the account of the appellee and John Balch as. executors of the will of Nancy Horton. Granger v. Bassett, 98 Mass. 462. The adjudications that the appellee as such executor had not failed to account for any part of the income accruing during that time to Mrs. Horton from the estates of her husband and brother necessarily involved a finding that he had not unjustifiably failed to pay her any part of that income according to his trust and duty in settling those estates; for if he had failed in that duty as representative of either of those estates, it would have been his duty, acting with his coexecutor of the will of Mrs. Horton, to see that the deficiency was paid up, and he would have been liable as such executor accordingly. No evidence has been introduced that any alleged item of such deficiency was through mistake or fraud omitted to be suggested or passed upon in the former case.

Decrees affirmed.